The opinion of the court was delivered by: McCLURE, District Judge.
On April 28, 1999, plaintiffs John and Mary Doe commenced this
action against various defendants*fn1 with the filing of a
complaint pursuant to the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101, et seq.*fn2; section 504 of the
Rehabilitation Act of 1973 ("Rehab Act"), 29 U.S.C. § 794; Title
IV of the Civil Rights Act of 1964 ("Title IV"); and
42 U.S.C. § 1983. Plaintiffs allege, inter alia, that defendants violated
their civil rights by excluding plaintiffs from participation in
the foster care program run by Centre County because of the
disability of plaintiffs' son and on account of plaintiffs' race.
See Complaint at ¶ 1.
The moving party bears the initial responsibility of stating
the basis for its motion and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. Celotex at 323, 106 S.Ct. 2548. He or she can
discharge that burden by "showing . . . that there is an absence
of evidence to support the nonmoving party's case." Celotex at
325, 106 S.Ct. 2548.
Issues of fact are genuine "only if a reasonable jury,
considering the evidence presented, could find for the non-moving
party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir.
1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Material facts are
those which will affect the outcome of the trial under governing
law. Anderson at 248, 106 S.Ct. 2505. The court may not weigh
the evidence or make credibility determinations. Boyle v. County
of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). In determining
whether an issue of material fact exists, the court must consider
all evidence and inferences drawn therefrom in the light most
favorable to the non-moving party. Boyle at 393; White v.
Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988).
If the moving party satisfies its burden of establishing a
prima facie case for summary judgment, the opposing party must do
more than raise some metaphysical doubt as to material facts, but
must show sufficient evidence to support a jury verdict in its
favor. Boyle at 393 (quoting, inter alia, Matsushita Electric
Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
III. Statement of Material and Undisputed Facts
In contravention of LR 56.1 of the Local Rules for the Middle
District of Pennsylvania, defendants failed to file a "separate,
short and concise statement of the material facts, in numbered
paragraphs, as to which the moving party contends there is no
genuine issue to be tried." LR 56.1.
In our order dated August 30, 1999 denying plaintiffs' motion
for a preliminary injunction, the court set forth 116 findings of
fact. See Order dated August 30, 1999 at 3-19. As the motion
for preliminary injunctive relief arises out of the same set of
facts as the motion for summary judgment, we will deem those
facts to be material and undisputed which are set forth as
findings of fact in our August 30th memorandum, and the same are
incorporated herein by reference; provided, however, that
findings of fact numbered 17, 51, 54 and 80 have been excluded in
deciding the instant motion as either immaterial to our
discussion, or subject to dispute.
A. Direct Threat
29 U.S.C. § 706(8)(D) (emphasis added).
Arline, 480 U.S. at 288, 107 S.Ct. 1123 (quoting Brief for
American Medical Association as Amicus Curiae at 19).
This court in our August 30th order weighed each of these four
factors against the evidence presented at the preliminary
injunction hearing. In doing so, we held that there is a high
probability that HIV may be transmitted to children placed in
foster care with the Does. See Order dated August 30, 1999 at
26. This court relied on statistical evidence offered by
defendants at the hearing on the motion for preliminary
injunctive relief. We reiterate:
Id. The court went on to state that ". . . it appears that
there is evidence from which
defendants can make an objective determination of the existence
of a direct threat to foster children placed in the Doe
home . . ." Id. at 27. Viewing the evidence and all
reasonable inferences made therefrom in the light most favorable to
plaintiffs, we do not believe that any reasonable jury could find
defendants liable under the ADA and Section 504 of the Rehab Act.
Plaintiffs go to great lengths in their supporting brief to
detail the information they need to attain in order to respond
appropriately to defendants' direct threat allegations.
Plaintiffs' Supplemental Opposition Brief at 10. However, we do
not believe that the information plaintiffs wish to seek through
further discovery is germaine to the disposition of defendants'
motion. Even if plaintiffs had the opportunity to conduct further
discovery, the proffered facts that they wish to uncover would
not create a genuine issue of material fact for the jury to
decide. For example, plaintiffs wish to obtain the following
the actual incidence of forcible sexual intercourse
perpetrated by CYS foster children in private foster
homes over the past several years; the ages of those
foster children at the time that they committed
forcible sexual intercourse; the genders of those
same foster children; the individual circumstances
surrounding each incident of forcible sexual
intercourse; whether those children had committed
single or multiple acts of sexual abuse; the dates of
all such incidents of sexual abuse by those foster
children; the individual assessments that defendants
undertake of each foster child to attempt to identify
potential sexually abusive foster children and the
methods employed to reduce the possibility of sexual
abuse by foster children in private foster placements
as opposed to group home settings; whether the
increased level of supervision in private foster
homes versus group homes reduces the risk of sexual
abuse; and the potential modifications that CYS could
make to its existing policies and procedures in order
to better identify known or potential abusers.
Id. at 10-11.
Assuming arguendo that plaintiffs had an opportunity to
uncover these items, it would not create a genuine issue of fact
as to the probability of HIV transmission in the Doe home and the
resulting existence of a direct threat. Indeed, the court does
not believe that any of these facts, if uncovered, would be
material to a reasonable jury's decision.
Moreover, plaintiffs contend that the affidavit of Frank
Cervone, Executive Director of the Support Center for Child
Advocates in Philadelphia, Pennsylvania, creates a genuine issue
of material fact as to the direct threat issue. We disagree.
Cervone's affidavit states in pertinent part that reported
cases involving sexual abuse by foster children encompass a range
of activities, many of which would pose no risk of possible HIV
transmission. Cervone Affidavit at ¶ 8, attached as Exhibit B to
Plaintiffs' Supplemental Opposition Brief. However, Cervone
offers no medical or statistical evidence to back up his
Cervone also states that responsible foster care agencies have
the responsibility to attempt to identify all children who
present a risk of sexually aggressive behavior. Id. at ¶ 9.
Thus, plaintiffs suggest that those children who are at risk for
being sexually aggressive "would not be considered for placement
with the Does to begin with and could not present a risk of
sexual abuse to AJB." Plaintiffs' Supplemental Opposition Brief
at 15. However, plaintiffs ignore this court's finding that "CYS
cannot identify with any certainty at the time of placement which
of its foster children will engage in assaultive behavior or
those children who will be sexual perpetrators." Order dated
August 30, 1999 at 27. Moreover, we reiterate this court's
consideration of AJB's mental and physical deficiencies:
Indeed, AJB's communicative skills are limited, and
the court questions his ability to communicate the
occurrence of inappropriate sexual contact from
foster children placed in the Doe home. More
significantly, the court questions AJB's ability to
fend off inappropriate sexual behavior in the absence
of one of his parents.
Id. at 27-28. Therefore, Cervone's affidavit fails to create a
genuine issue of material fact in this regard.
Cervone also contends that there are steps to reduce the risk
of "insertive sexual intercourse occurring in the foster home,"
such as sex education, HIV/AIDS education, counseling and close
supervision. See Plaintiffs' Supplemental Opposition Brief at
15. However, Cervone's assertion fails to take the facts of this
case into consideration. While sex education and counseling may
be the answer in other foster care situations, the court again
reiterates its concerns regarding AJB's mental and physical
deficiencies. It is unlikely that AJB possesses the skills needed
to comprehend any form of sex education or counseling. Moreover,
by Jane Doe's own admission at the hearing, neither she nor her
husband are always present in the same room with AJB and his
brother, MJB. In fact, the Does utilize an electronic monitoring
system to monitor the childrens' actions. See Findings of Fact
at ¶ 86 (August 30, 1999 order).
Lastly, plaintiffs rely on the affidavit of Dr. Swenson, who
testified at the preliminary injunction hearing and was qualified
as an expert in the treatment and prevention of AIDS. According
to Dr. Swenson, the risk that AJB would transmit AIDS to a foster
child who forced AJB to perform oral sex upon him is negligible;
the risk of transmission to that same child who performed
insertive intercourse upon AJB is approximately 1 in 1,666
incidents; and that this remote risk is reduced even further if
the infected victim, like AJB, has low or undetectable viral
loads. See Plaintiffs' Supplemental Opposition Brief at 16.
However, as we stated in our August 30th order, "[t]he court is
unaware of any way of assuring that contact between AJB will be
indeed casual." Order dated August 30, 1999 at 28. By Dr.
Swenson's own assertion, "[t]he risk of transmission of HIV
through sexual contact varies significantly based on the type of
contact, the specific roles taken by the HIV-infected partner in
the particular sex act, and whether a condom or other carrier is
used." Affidavit of Dr. Swenson at ¶ 3, attached as Exhibit C to
Plaintiffs' Supplemental Opposition Brief. It is the existence of
this uncertainty that the court finds material in light of
Arline. Plaintiffs have not offered any evidence that creates a
genuine issue as to the existence of a direct threat to foster
children placed in the Doe home. Moreover, the court does not
believe that the facts plaintiffs wish to uncover create any
genuine issue of material fact in this regard.
As a side note, we must address plaintiffs' remaining argument
regarding the direct threat issue; that is, that defendants have
not proven that no reasonable accommodation exists. See
Plaintiffs' Supplemental Opposition Brief at 21. We believe
plaintiffs' argument is inherently flawed. First, reasonable
accommodations exist on the face of the Policy:
C) Placement of Children With Serious Infectious
Diseases [CYS] will approve specific foster homes
for placement of children with serious infectious
diseases and will assure that the care-giver is given
the necessary medical and other training needed to
meet a child's specific condition. If a child with a
serious infectious disease is placed in a foster
home, or if there is a family/household member of the
foster family who has a serious infectious disease,
only children with the same serious infectious
disease will be considered for placement in that
home. The only exception to this policy would be for
a parent/guardian of a child in the care and custody
of [CYS] to sign an informed
consent for the placement of their non-infected child
in such a home. (See attached Placement Consent.) For
this exception to occur, the foster parents would
have to voluntarily agree to release information to
the child's parents that a member of the foster
family/household has been diagnosed with a specific
serious infections disease. (See attached Foster
Parent Consent to Release Medical Information.)
See Policy (emphasis added); see also Findings of Fact
(August 30, 1999 order) at ¶ 50.
Therefore, it appears that defendants have offered reasonable
accommodations; that is, the placement of a child with the same
serious infectious disease as AJB, or a signed informed consent
from the biological parent of the foster child. Plaintiffs cannot
contend that defendants have not offered reasonable
accommodations simply because they disagree with them.
Notwithstanding the language of the Policy, the court believes
that based on the evidence presented at the hearing, there is
insufficient evidence from which a jury could determine whether
other reasonable accommodations could be made in this instance.
Although their supplemental opposition brief is replete with bald
assertions, plaintiffs have produced no evidence in the form of
affidavits or deposition testimony that indicates a reasonable
Therefore, in light of the above, the court finds that there is
no genuine issue of material fact and that defendants are
entitled to judgment as a matter of law as to the ADA claims and
Rehab Act claims.
B. Qualified Immunity
Plaintiffs contend that the evidence submitted at the
preliminary injunction hearing creates a genuine issue of
material fact regarding defendants' qualified immunity defense.
Id. at 22. We disagree.
The "qualified immunity" defense for public officials was first
upheld in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727,
73 L.Ed.2d 396 (1982), and Anderson v. Creighton, 483 U.S. 635,
107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). As stated by the United
States Supreme Court:
government officials performing discretionary
functions generally are shielded from liability for
civil damages insofar as their conduct does not
violate clearly established statutory or
constitutional rights of which a reasonable person
would have known.
Harlow, 457 U.S. at 818, 102 S.Ct. 2727 (citations omitted).
The determination of whether qualified immunity applies should
be made as early in the litigation as possible. Siegert v.
Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277
(1991). "Unless plaintiff's allegations state a claim of a
violation of a clearly established law, a defendant pleading
qualified immunity is entitled to dismissal before the
commencement of discovery." P.F. v. Mendres, 21 F. Supp.2d 476
(D.N.J. 1998) (quoting Anderson, 483 U.S. at 635, 640 n. 6, 107
S.Ct. at 3034); Mitchell v. Forsyth, 472 U.S. 511, 526, 105
S.Ct. 2806, 86 L.Ed.2d 411 (1985). If there are no genuine issues
of material fact, the application of qualified immunity is a
question of the law for the court to decide. Lennon v. Miller,
66 F.3d 416, 421 (2d Cir. 1995).
According to the Third Circuit, the district court must
"ascertain whether a constitutional violation has been alleged
before determining if qualified immunity is available." Miller
v. City of Philadelphia, 174 F.3d 368, 374 (3d Cir. 1999)
(citing Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789,
114 L.Ed.2d 277 (1991); Larsen v. Senate of the Commonwealth of
Pa., 154 F.3d 82, 86 (3d Cir. 1998)). If the conduct alleged by
plaintiff violated a clearly established principle of
constitutional or statutory law, the court goes on the ask
"whether the unlawfulness of the action would have been apparent
to an objectively reasonable official." McNeil v. Koch, No.
Civ.A. 98-4578, 1999 WL
729263, at *5 (E.D.Pa. Sept.15, 1999) (citing, inter alia,
Sharrar v. Felsing, 128 F.3d 810, 826 (3d Cir. 1997); Rouse v.
Plantier, 182 F.3d 192 (3d Cir. 1999)). An officer's subjective
intent in carrying out the challenged action is immaterial to the
resolution of questions concerning qualified immunity. See
Johnson v. Horn, 150 F.3d 276, 286 (3d Cir. 1998). "[W]hether an
official protected by qualified immunity may be held personally
liable for an allegedly unlawful official action generally turns
on the `objectively legal reasonableness' of the action, assessed
in light of the legal rules that were `clearly established' at
the time it was taken." Anderson, 483 U.S. at 639, 107 S.Ct.
Plaintiffs in their supplemental opposition brief state that
they have presented extensive arguments countering defendants'
qualified immunity claims in their initial opposition brief, and
that they incorporate those arguments by reference. Plaintiffs'
Supplemental Opposition Brief at 22. However, this argument is
flawed since the basis for plaintiffs' discussion in their
original opposition brief was that "plaintiffs have sufficiently
alleged that defendants acted unreasonably in creating and
implementing the disclosure and waiver policy." Id. We agree
with defendants that plaintiffs have not satisfied the first
hurdle of the test set forth by the Third Circuit, that is, that
defendants' challenged conduct violates a clearly established
principle of constitutional or statutory law.
We agree that there are no cases from the Third Circuit which
address the duty of care that a public agency must exercise when
placing children into foster homes. The situation presented here
differs from cases dealing with the rights of AIDS victims in
places of public accommodations. We agree with defendants that
CYS must consider the best interest of the foster children in
placing them in foster homes. We further agree that many
placement decisions must be made quickly, and that it is not
always possible to assess a child's propensity towards sexual
aggressiveness. With this in mind, it follows logically that CYS
can never accurately assess the risk of AIDS transmission in a
foster home in which a child, such as AJB, resides.
Moreover, we are aware of no case law regarding the legal
responsibilities of a placement agency when foster children are
at risk of contracting AIDS in a foster home setting. See
Defendants' Original Reply Brief at 7. In fact, plaintiffs cite
to no such case law in their opposition brief, but rather cite to
cases we find inapposite here, since they do not deal with the
direct threat we hold exists in a foster home situation with an
HIV-infected household member with the mental capacity of AJB.
See Plaintiffs' Original Opposition Brief at 16-17 and cases
cited therein: St. Hilaire v. Arizona Dep't of Corrections, No.
90-15344, 1991 WL 90001, 1991 U.S.App. LEXIS 11620 (9th Cir.
1991) (prisoner with AIDS cannot be prohibited from sharing a
cell with another prisoner); Martinez v. School Board of
Hillsborough County, 861 F.2d 1502, 1506 (11th Cir. 1988)
(student with AIDS cannot be isolated from classmates); Chalk v.
United States District Court, 840 F.2d 701, 707 (9th Cir. 1988)
(teacher could not be transferred from classroom because of HIV
status); Support Ministries for Persons with AIDS, Inc. v.
Village of Waterford, 808 F. Supp. 120, 136-37 (N.D.N.Y. 1992)
(residence for homeless persons with AIDS posed no threat to
safety of community residents).
Therefore, we find that plaintiffs cannot overcome defendants'
qualified immunity defense by showing that the challenged conduct
violated rights that were clearly established at the time the
conduct occurred. In sum, the court finds that there is no
genuine issue of material fact and that defendants are entitled
to judgment as a matter of law on the basis of qualified
D. Punitive Damages
We agree with defendants that they are immune from any punitive
damages award. According to the United
States Supreme Court, a municipality is immune from punitive
damages under 42 U.S.C. § 1983. Reitz v. Persing, 831 F. Supp. 410
(M.D.Pa. 1993) (citing City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 271, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616
(1981)). "Concerned with burdening the taxpayer with punitive
damages imposed against a municipality, the Supreme Court found
that `considerations of history and policy do not support
exposing a municipality to punitive damages for the bad-faith
acts of its officials.'" Id.
Therefore, the County of Centre and Centre County CYS are
immune from any claims for punitive damages.
As for the individual defendants, we do not believe that any
claim for punitive damages may be recovered because plaintiffs
have neither alleged nor produced evidence that defendants'
conduct was outrageous. See Qualified Immunity, supra at § C.
Therefore, the individual defendants are immune from any claims
for punitive damages.
E. Race-Based Claims
Lastly, as for plaintiffs' race-based claims, we agree with
defendants that such claims are not ripe for adjudication. We
reiterate the pertinent section of our August 30, 1999
. . We find it noteworthy that defendants have not
yet reached their final decision regarding
plaintiffs' foster parent application. As such, no
foster child has been referred to plaintiffs, nor has
any referral been denied to plaintiffs on the basis
of race or any basis whatsoever. Moreover,
plaintiffs' testimony regarding racial discrimination
was rebutted by testimony from Carol Smith and Lisa
Rice of CYS. Both defendants denied relating to
plaintiffs that CYS would not consider placing a
white child in their home.
As there is no evidence that any child was referred
to the Does or that the Does were denied any
referrals, the court finds plaintiffs' race-based
claims of discrimination without merit.
Order dated August 30, 1999 at 20.
Therefore, because the Does' foster parent application has not
yet been approved, their race-based discrimination claims are not
ripe for adjudication.
For the reasons stated herein, the court finds that there is no
genuine issue of material fact and that defendants are entitled
to judgment as a matter of law. Accordingly, we will grant
summary judgment in favor of defendants as to all claims.
An appropriate order will issue.
For the reasons stated in the accompanying memorandum, IS IT
1. Plaintiff's motion (record document no. 36) for
reconsideration of the court's October 13, 1999 order, is denied.
2. The court's October 13, 1999 order is hereby affirmed.
3. Defendants' motion (record document no. 23) to dismiss,
converted by this court to a motion for summary judgment, is
4. The clerk is directed to enter final judgment as to all
claims in favor of defendants and against plaintiffs.
5. The clerk is directed to close the file.
IT IS ORDERED AND ADJUDGED that judgment as to all claims is
entered in favor of all Defendants and against the Plaintiffs.